People v. Garlinger , 247 Cal. App. 4th 1185 ( 2016 )

Filed 6/1/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C074480
v. (Super. Ct. No. 11F03158)
LUKE GARLINGER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Kevin J.
McCormick, Judge. Affirmed.
Jennifer a. Mannix, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney
General, Julie A. Hokans, and Henry J. Valle, Deputy Attorneys General, for Plaintiff
and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of part II of the discussion.
1
We, as a society, have been communicating wirelessly for more than a century.
(Fessenden, Wireless Telephony in Transactions of the American Institute of Electrical
Engineers (1908) pp. 578-581.) While technology has advanced considerably since the
first signals were transmitted over the air, we conclude in the published portion of this
opinion that expert testimony explaining a cell phone signal received by a certain side of
a cell tower must have come from that side of the tower and in the general vicinity of the
tower does not describe a new scientific technique subject to the standard set forth by our
Supreme Court in People v. Kelly (1976) 17 Cal. 3d 24 (Kelly) for admitting the results of
such techniques.
Defendant Luke Garlinger robbed a motel clerk at gunpoint and threatened to
shoot her if she did not comply with his demands. He was convicted by jury of
second degree robbery and making a criminal threat, and also found to have personally
used a firearm during the commission of the crimes. The trial court sentenced defendant
to serve an aggregate determinate term of 13 years in state prison and imposed other
orders.
On appeal, defendant (1) contends his trial counsel provided constitutionally
deficient assistance by failing to object to expert testimony concerning the general
location of defendant’s cell phone in relation to various cell towers to which that phone
connected during the hours before and after the robbery, arguing the testimony was
inadmissible under the Kelly standard and Evidence Code sections 801 and 802;1 and
(2) asks us to review the trial court’s determination, after conducting an in camera review
1 Undesignated statutory references are to the Evidence Code.
2
of a certain detective’s personnel files under Pitchess v. Superior Court (1974) 11 Cal. 3d
531 (Pitchess), that the files contained no discoverable material.2
As we have already noted, we reject defendant’s Kelly challenge in the published
portion of this opinion. (Kelly, supra, 17 Cal. 3d 24.) We also conclude in that portion of
the opinion the expert’s testimony was not rendered inadmissible by sections 801 and
802. Thus, defendant’s trial counsel was not ineffective for failing to make a futile
objection to the evidence. In the unpublished portion of the opinion, we explain that after
reviewing the contents of the sealed record relating to defendant’s Pitchess motion, we
conclude the trial court did not abuse its discretion in determining the personnel files
contained no discoverable material. Accordingly, we affirm the judgment.
FACTS
In March 2011, Evelyn Porlas worked as the night desk clerk at the Extended Stay
motel in Elk Grove. Two sets of glass doors separated the motel’s lobby from the front
of the motel. At night, the outer doors remained unlocked, while the inner doors required
a card key for access to the lobby. A prospective guest trying to check in after the inner
doors were locked would call the front desk from a phone outside these doors.
The night of the robbery, after Porlas finished up some laundry in another room,
she came to the front desk and found defendant in the lobby. He was wearing cargo
pants, a brown jacket, a stockcar racing cap, dark sunglasses, and gloves. Porlas asked
defendant how he got in the lobby. Defendant said someone let him in and asked for a
room. Porlas began the process of renting him a room for the night. When she asked for
identification and a credit card, defendant fumbled through his pockets for a moment and
then told her to open the door behind the front desk. Porlas refused. Defendant again
2 While Pitchess has been superseded by statute, motions for discovery of law
enforcement officer personnel files are still referred to as Pitchess motions. (People v.
Mooc (2001) 26 Cal. 4th 1216, 1225.)
3
told her to open the door. Porlas again refused. Defendant then opened his jacket to
reveal a handgun in a shoulder holster and threatened to shoot Porlas if she did not open
the door. Afraid for her life, Porlas opened the door. Inside the room, defendant pointed
to a piece of luggage and told Porlas to open it. When Porlas was unable to open the
luggage, defendant asked to be taken to the cash register. Porlas complied and opened
the register, which contained only change. Defendant then asked Porlas where the cash
was kept. Porlas took defendant to the safe, but told him she did not have the
combination. He instructed her to try to open it anyway, which she did. After a few
randomly selected combinations did not open the safe, Porlas heard someone knocking
on the inner lobby doors. At this point, Porlas told defendant she needed to let the person
in and ran towards the doors, crouching as she ran because she thought defendant might
try to shoot her in the head.
The person knocking on the lobby doors was a motel guest whose card key was
not working properly. After calls to the front desk went unanswered, she decided to
knock. Porlas made a “finger-gun” hand signal as she came out of the back room and
made her way to the doors. Once outside, Porlas said she was being robbed. She was
“distraught” and “extremely scared, shaking.” Another guest, who was outside smoking
a cigarette when Porlas exited the lobby, called 911. While this guest was on the phone,
he saw a man who generally matched defendant’s description exit the motel out of a
different door carrying “what looked to [him] like a laptop-type container,” walk across
the parking lot, and get into the back seat of a faded blue Honda Accord. The car then
drove out of the parking lot with its lights off.
Police officers arrived a short time later and took Porlas’s statement. They
also contacted the motel’s general manager by phone, prompting him to come down
to the motel. The manager noted a small safe that had nothing inside was missing
from the back room. The manager also provided officers with the motel’s security
camera footage. Using still images from this footage, Detective Mark Bearor created a
4
crime bulletin and had the police department’s public information officer issue a press
release.
At some point, Jonathan Bresciani saw the crime bulletin online, recognized
defendant in the footage, and showed the bulletin to defendant’s long-time girlfriend,
Rachelle Stratton. Stratton and defendant lived together in the north Natomas area of
Sacramento. Their relationship “wasn’t strong at the time” due to the fact defendant was
using and selling drugs, specifically marijuana and methamphetamine. Defendant spent a
lot of time hanging out and doing drugs with friends in the garage, often sleeping out
there. Bresciani was one of these friends, or as defendant referred to them, “drug
acquaintance[s].” Bresciani had also stayed at the Extended Stay motel in Elk Grove
several times before the robbery and had defendant over to visit during many of those
stays. When Bresciani showed Stratton the crime bulletin, she agreed the man in the
footage looked like defendant. Bresciani and Stratton each contacted the police
department and gave separate statements to Detective Bearor.
A photographic lineup was prepared and shown to Porlas. While she paused on
defendant’s photograph longer than any of the others, Porlas did not identify anyone in
the lineup. Porlas did, however, positively identify defendant at trial as the man who
robbed her.
In addition to Porlas’s in-court identification of defendant and the out-of-court
identifications made by Stratton and Bresciani based on the surveillance video, the
following circumstantial evidence also connected defendant to the crime. Stratton
testified she owned a light blue Honda Accord defendant occasionally took without
asking. Stratton also testified defendant owned a handgun and shoulder holster. The gun
was purchased by both Stratton and defendant for protection and was registered in
Stratton’s name. The day before Stratton’s house was searched by police, she told
Detective Bearor this gun was missing. When police executed a search warrant on the
house the next day, they did not find the gun. However, several months later, Stratton
5
claimed to have found the gun in her closet, which was an area the officers had
previously searched, and handed the gun over to Detective Bearor. Defendant was in
custody at the time Stratton turned the gun over to the detective, having been arrested the
day after the house was searched. The same day Stratton turned the gun over, she and
defendant discussed the matter in a jailhouse phone call that was recorded and played for
the jury. In the phone call, defendant asked Stratton whether she “wiped it down hella
good.” In another jailhouse phone call, defendant implored Stratton to go along with his
“alibi” and to tell the district attorney she had sex with defendant the night of the robbery,
adding, “just tell her that story, okay?” Bresciani also testified that while he and
defendant were hanging out, defendant “brought up that . . . he needed money and
thought that going to motels and hitting the safes would be a quick, easy [way to get]
money . . . .”
Finally, as we explain in greater detail immediately below, cell phone records
revealed defendant’s calls were made from his cell phone from the general vicinity of his
house in the north Natomas area of Sacramento to the general vicinity of the Extended
Stay motel in Elk Grove the night of the robbery, connecting to a cell tower near the
motel about 30 minutes before and just after the robbery, and then returned to the
Natomas area about an hour later.
DISCUSSION
I
Admission of Expert Cell Phone Testimony
Defendant contends his trial counsel provided constitutionally deficient assistance
by failing to object to expert testimony concerning the general location of his cell phone
in relation to various cell towers to which that phone connected during the hours before
and after the robbery, arguing such testimony was inadmissible under the Kelly standard
for admitting the results of new scientific techniques and sections 801 and 802. We
disagree.
6
A.
Additional Background
Detective Bearor testified as an expert in analyzing cell phone call detail records.
As the detective explained, call detail records are maintained by cell phone companies
and include, among other things, the time and duration of each call, the cell tower the
phone connected to at the initiation of the call, the cell tower the phone was connected to
at the termination of the call, and the “azimuth” (or compass orientation) of the particular
antenna face of the cell tower the phone connected to at each of those points in time.
Because cell towers typically have three antenna faces (or sectors) arranged in triangular
fashion, each sector will receive signals from about a 120-degree area. Thus, the azimuth
enables the detective to determine from which general direction a particular call
connected to the tower.3
With respect to the process, Detective Bearor explained that once a warrant is
obtained for these records, the custodian of records for the particular cell phone company
compiles a spreadsheet containing the foregoing information and sends that spreadsheet
to the department. The custodian also sends information regarding the location of each of
the company’s cell towers and a “tip sheet” with instructions on how to interpret the
information in the records. The detective then creates his own spreadsheet from the one
received, rendering the information into a more user-friendly format. He also uses either
an outside contractor or the City of Elk Grove’s (City) mapmaking division to plot the
locations of the relevant cell towers, i.e., the towers connected to during the time period
he is investigating, and other relevant locations on a map. The detective then verifies that
the locations plotted on any maps generated by others are accurate.
3 The detective also explained that occasionally a cell tower will have only one
antenna that receives signals from all directions. Other towers have six sectors.
7
Regarding his qualifications as an expert, Detective Bearor testified he completed
the basic investigative training course offered by the Commission on Peace Officer
Standards and Training, completed additional investigative training courses, and,
beginning in 2008, attended a yearly symposium that included a section on cell phone
record analysis. This section enabled the detective to “stay up to date talking to the
industry leaders that provide this data to law enforcement.” The detective also remained
up to date on cell phone technology by reading various articles on the subject. Since
becoming a detective in 2001, he obtained and analyzed cell phone call detail records
“[n]o less than 40” times. Prior to attending the yearly symposium section on cell phone
record analysis, the detective was trained how to analyze such records by others in the
department and also contacted the custodian of records for various cell phone companies
if he had trouble understanding the records he received. Aside from analyzing these
records in his own cases, the detective has also been asked to assist outside agencies in
analyzing such records in other cases. Finally, the detective explained he had testified as
an expert in analyzing cell phone call detail records in four cases since 2003. Based on
these qualifications, the detective was accepted as an expert in cell phone call detail
record analysis.
Turning to the records received in this case, Detective Bearor testified he received
defendant’s call detail records covering the week of the robbery from Sprint’s custodian
of records. He then used the process described above, focusing on the day of and day
after the robbery. The detective was careful to point out these records did not enable him
to pinpoint the phone’s exact location at any given time, but only enabled him to
determine “the vicinity of the phone . . . in relationship to a cell site, whether it’s north of
the site, southwest of a site, southeast of a site and such.”
The robbery occurred shortly before 11:00 p.m. on March 10, 2011. Detective
Bearor’s analysis of the call detail records for defendant’s phone before and after this
time revealed the following: At 7:14 p.m. that night, defendant’s cell phone connected to
8
the southwest sector of a cell tower located on West Delano Street in the north Natomas
area of Sacramento at the beginning of a brief call, and was connected to the north sector
of a cell tower located on Sorento Road, also in the north Natomas area, at the
termination of that call. Thus, the cell phone must have been located southwest of the
West Delano tower and north of the Sorento tower during the call. Defendant’s house
was located in that general vicinity. At 8:18 p.m., defendant’s cell phone connected to
the north sector of a cell tower located on Franklin Boulevard in the south Sacramento
area. At 8:22 p.m., the cell phone again connected to the same sector of that tower. At
8:31 p.m., the cell phone connected to the southwest sector of a cell tower located on
Stockton Boulevard. Thus, by 8:31 p.m., the cell phone had moved south from the
general vicinity of Natomas to the general vicinity of south Sacramento, somewhere to
the southwest of the Stockton tower. At 10:22 p.m., less than an hour before the robbery,
defendant’s cell phone connected to the southwest sector of a cell tower located on High
Tech Court in Elk Grove. The Extended Stay motel was located in that general vicinity.
At 11:03 p.m., just after the robbery, the cell phone again connected to the same sector of
that tower. Then, at 12:20 a.m. on March 11, the cell phone connected to the southwest
sector of a cell tower located at One Sports Parkway, i.e., Sleep Train Arena, in Natomas.
And by 7:43 a.m., the cell phone connected to the southeast sector of a cell tower located
on Elkhorn Boulevard, placing the phone again in the general vicinity of defendant’s
house.
Defendant’s trial counsel did not object to the foregoing testimony, forfeiting the
contention on appeal that the testimony was inadmissible under the Kelly test or sections
801 and 802. We turn now to the question of whether this failure amounted to ineffective
assistance of counsel.
9
B.
Analysis
A criminal defendant has the right to the assistance of counsel under both the Sixth
Amendment to the United States Constitution and article I, section 15, of the California
Constitution. (People v. Ledesma (1987) 43 Cal. 3d 171, 215.) This right “entitles the
defendant not to some bare assistance but rather to effective assistance. [Citations.]
Specifically, it entitles him [or her] to ‘the reasonably competent assistance of an attorney
acting as his [or her] diligent conscientious advocate.’ [Citations.]” (Ibid.) “‘In order to
demonstrate ineffective assistance of counsel, a defendant must first show counsel’s
performance was “deficient” because his [or her] “representation fell below an objective
standard of reasonableness . . . under prevailing professional norms.” [Citations.]
Second, he [or she] must also show prejudice flowing from counsel’s performance or lack
thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.”’” (In re Harris (1993) 5 Cal. 4th 813, 832-833; accord, Strickland v.
Washington (1984) 466 U.S. 668, 687 [80 L. Ed. 2d 674, 693].) The burden of proving a
claim of ineffective assistance of counsel is squarely upon the defendant. (People v.
Camden (1976) 16 Cal. 3d 808, 816.)
Defendant has not carried his burden. Defense counsel’s failure to object to the
cell phone testimony cannot amount to deficient performance where such an objection
would have been futile. (See People v. Cudjo (1993) 6 Cal. 4th 585, 616 [failure to object
to the admission of evidence is not ineffective assistance where “there was no sound legal
basis for objection”]; see also People v. Diaz (1992) 3 Cal. 4th 495, 562 [failure to object
to the admission of evidence is not ineffective assistance where “any objection . . . would
have been futile”].) Such is the case here.
10
In California, the Kelly test governs “the admission of expert testimony regarding
new scientific methodology.” (People v. Leahy (1994) 8 Cal. 4th 587, 591.)4 Under that
test, the proponent of such evidence must establish: (1) the new methodology is reliable
by showing it has gained general acceptance in the relevant scientific community; (2) the
witness furnishing the testimony is qualified as an expert to give an opinion on the
subject; and (3) correct scientific procedures were used in the particular case. (Kelly,
supra, 17 Cal.3d at p. 30.) However, as our Supreme Court has explained, this test “is
applicable only to ‘new scientific techniques,’” that is, “‘to that limited class of expert
testimony which is based, in whole or part, on a technique, process, or theory which is
new to science and, even more so, the law.’” (People v. Leahy, supra, 8 Cal.4th at p. 605,
quoting People v. Stoll (1989) 49 Cal. 3d 1136 (Stoll).)
For example, in Stoll, supra, 49 Cal. 3d 1136, a molestation case, our Supreme
Court held the Kelly test did not apply to proposed expert psychological testimony, based
in part on the administration of certain psychological tests, that one of the defendants did
not possess “any ‘pathology’ in the nature of ‘sexual deviation.’” (Stoll, supra, 49 Cal.3d
at pp. 1146-1147.) The court first explained the “narrow ‘common sense’ purpose”
behind the Kelly rule is “to protect the jury from techniques which, though ‘new,’ novel,
or ‘“experimental,”’ convey a ‘“misleading aura of certainty.”’ [Citations.]” (Id. at pp.
1155-1156.) Under Kelly, the jury must be protected from such techniques until “the
pertinent scientific community no longer views them as experimental or of dubious
validity,” particularly where “the unproven technique or procedure appears in both name
4 Previously referred to as the Kelly/Frye test, after the California Supreme Court’s
decision in Kelly and the seminal federal decision in Frye v. United States (D.C. Cir.
1923) 293 F. 1013, the latter decision was held to have been abrogated by rule 702 of the
Federal Rules of Evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509
U.S. 579 (Daubert). Thereafter, in Leahy, supra, 8 Cal. 4th 587, the California Supreme
Court held the Kelly test remained the rule in California.
11
and description to provide some definitive truth which the expert need only accurately
recognize and relay to the jury. The most obvious examples are machines or procedures
which analyze physical data. Lay minds might easily, but erroneously, assume that such
procedures are objective and infallible.” (Id. at p. 1156; see, e.g., People v. Leahy, supra,
8 Cal.4th at p. 606 [horizontal gaze nystagmus (HGN) test for probable intoxication
subject to Kelly test as a new scientific technique]; see also People v. Shirley (1982) 31
Cal. 3d 18, 51-52 [listing cases in which the Kelly test has been applied to polygraph
examinations, “truth serum,” experimental systems of blood typing, voiceprint analysis,
identification of human bite marks, and microscopic identification of gunshot residue
particles].) The Stoll court also acknowledged the Kelly test “has been applied to less
tangible new procedures which carry an equally undeserving aura of certainty,” citing
Shirley, in which the court applied the test to bar the admission of “‘post-hypnotic’
testimony of a rape complainant,” but explained that “absent some special feature which
effectively blindsides the jury, expert testimony is not subject to Kelly/Frye.” (Stoll,
supra, 49 Cal.3d at pp. 1156-1157.) The court then concluded the expert psychological
testimony proffered in Stoll raised none of the concerns underlying the Kelly test,
explaining: “The methods employed are not new to psychology or the law, and they
carry no misleading aura of scientific infallibility.” (Id. at p. 1157.)
Similarly, in People v. Clark (1993) 5 Cal. 4th 950 (Clark), disapproved on
another point in People v. Doolin (2009) 45 Cal. 4th 390, our Supreme Court held
expert testimony regarding blood spatter analysis was not subject to the Kelly test,
explaining the admissibility of blood spatter testimony predated the Kelly decision and
“neither the experiments conducted in connection with such analysis nor the principles
underlying it produce an ‘aura of scientific infallibility.’ Rather, it is a matter of
common knowledge, readily understood by the jury, that blood will be expelled from
the human body if it is hit with sufficient force and that inferences can be drawn from the
12
manner in which the expelled blood lands upon other objects.” (Clark, supra, 5 Cal.4th
at p. 1018.)
Moreover, in People v. Nolan (2002) 95 Cal. App. 4th 1210 (Nolan), our colleagues
at the Second District Court of Appeal explained the Kelly test “applies to new
methodologies,” not to “new devices [that] implement established scientific methods.”
(Id. at p. 1215.) Holding the Kelly test did not apply to testimony regarding drug test
results supplied by a new type of urinalysis device, the court stated: “Urinalysis is not
new. It is a medically accepted and widely used method of drug testing. [Citation.] ‘It
has been routinely used in California courts . . . .’ [Citation.]” (Id. at p. 1214.) The court
also rejected the argument that the new device “may not be accurate,” explaining the
defendant could have cross-examined the witness concerning the accuracy of the new
device or called an expert witness to challenge the device’s accuracy. (Id. at p. 1215; see
also Stoll, supra, 49 Cal.3d at p. 1159 [“issues of test reliability and validity may be
thoroughly explored on cross-examination” or by calling “another expert of comparable
background” to challenge the methods employed].)
Here, while cell phones are relatively new devices, the methodology is not new.
Cell phones operate like “sophisticated radios” by sending and receiving a radio signal to
and from a cell tower and base station in their general vicinity. (Kinder, The Physics of
Cell Phones (Apr. 7, 2003)
[as of May 16,
2016].) The area of the particular tower’s coverage is known as a “cell.” As the cell
phone user moves from cell to cell, the wireless company transfers the call to the new
cell’s tower and base station. (Ibid.) As previously stated, the transmission of radio
signals from one place to another is a technology that has been around for more than a
century. (Fessenden, Wireless Telephony, supra, at pp. 578-581.) There is nothing new
or experimental about this technology. Nor is there anything dubious about science’s
understanding of radio waves; as relevant here, they generally travel in a straight line.
13
(See Encyclopedia Britannica
[as of May 16, 2016].) Thus, determining the general location of a cell phone based on
which sector of the particular cell tower to which that phone’s signal connected cannot be
considered a “new scientific methodology.” (People v. Leahy, supra, 8 Cal.4th at p.
591.) This is all Detective Bearor purported to do in his testimony.
We further note such testimony is routinely admitted in the trial courts of this state
without any suggestion the Kelly test applies. (See, e.g., People v. Zavala (2013) 216
Cal. App. 4th 242, 248 [cell phone call detail records admitted at trial and held on appeal
to be admissible under the business records exception to the hearsay rule; no challenge to
the admission of this evidence under Kelly, supra, 17 Cal. 3d 24]; People v. Hollinquest
(2010) 190 Cal. App. 4th 1534, 1544-1545, [testimony regarding call detail analysis
admitted at trial; no challenge to the admission of this evidence under Kelly]; People v.
Vu (2006) 143 Cal. App. 4th 1009, 1016-1017, 1021-1023, 1027-1028 [testimony
regarding call detail analysis admitted at trial and contributed to the substantial evidence
held to support the defendant’s convictions; such evidence was also held to have
corroborated a certain accomplice’s testimony; no challenge to the admission of this
evidence under Kelly]; People v. Walker (2006) 139 Cal. App. 4th 782, 791 & fn. 5 [call
detail records admitted at trial were noted to have been inconsistent with the defendant’s
alibi; no challenge to the admission of this evidence under Kelly].) Thus, not only is the
methodology not new to science, neither is it new to the law. (People v. Leahy, supra, 8
Cal.4th at p. 605 [Kelly test is applicable only to “‘that limited class of expert testimony
which is based, in whole or part, on a technique, process, or theory which is new to
science and, even more so, the law’”].)
Nor would Detective Bearor’s testimony have carried a “misleading aura of
scientific infallibility.” (Stoll, supra, at p. 1157.) He did not purport to be able to
determine the precise location of the phone. Nor did he testify cell phone signals
always connect to the closest tower. However, in order to connect to a particular tower,
14
the cell phone would have to be located within the coverage area of that tower and in
the direction of the particular sector’s coverage. The detective did not define the
coverage area of any given cell tower. Instead, he testified simply in terms of which
general direction the phone was located in relation to the particular tower and whether
or not a certain landmark, e.g., the Extended Stay motel, was in that general area. We
believe the jury was capable of evaluating such testimony without being “blindside[d].”
(Ibid.)
Nevertheless, relying on a federal district court decision from Illinois, United
States v. Evans (N.D.Ill. 2012) 892 F. Supp. 2d 949 (Evans), defendant argues Detective
Bearor’s testimony is analogous to the “granulization theory” testimony found by that
court to lack sufficient reliability under Daubert, supra, 509 U.S. 579. (Evans, supra,
892 F.Supp.2d at pp. 955-957.) We disagree. The testimony sought to be admitted in
Evans, a kidnapping case, was described as follows: “To determine the location of a cell
phone using the theory of granulization, Special Agent Raschke first identifies (1) the
physical location of the cell sites used by the phone during the relevant time period; (2)
the specific antenna used at each cell site; and (3) the direction of the antenna’s coverage.
He then estimates the range of each antenna’s coverage based on the proximity of the
tower to other towers in the area. This is the area in which the cell phone could connect
with the tower given the angle of the antenna and the strength of its signal. Finally, using
his training and experience, Special Agent Raschke predicts where the coverage area of
one tower will overlap with the coverage area of another. [¶] Applying this
methodology, Special Agent Raschke testified that he could estimate the general location
of Evans’s cell phone during an 18 minute period (from 12:54 p.m. to 1:12 p.m.) on April
24, 2010, during which time Evans’s phone used two cell towers to place nine calls.
According to Special Agent Raschke, based on his estimate of the coverage area for each
of the antennas, the calls made from Evans’s phone could have come from the location
where the victim was held for ransom.” (Id. at p. 952.)
15
After concluding Special Agent Raschke qualified as an expert concerning the
operation of cell phone networks, and such expert testimony would be helpful to the
jury because it narrowed down the possible locations of Evans’s cell phone during
the relevant period of time (Evans, supra, 892 F.Supp.2d at pp. 954-955), the district
court concluded the specific theory of granulization was not shown to be sufficiently
reliable, explaining: “Estimating the coverage area of radio frequency waves requires
more than just training and experience, however, it requires scientific calculations that
take into account factors that can affect coverage. Special Agent Raschke presented
no scientific calculations and did not consider a variety of relevant factors. Although
the call data records upon which he relied are undisputed, the link between those
records and his conclusions is deficient.” (Id. at p. 956.) The court further explained
that “granulization theory remains wholly untested by the scientific community, while
other methods of historical cell site analysis can be and have been tested by scientists,”
and the theory “has not been generally accepted in the scientific community,” both of
which are factors weighing against a finding of reliability under Daubert. (Id. at pp. 956-
957.)
Defendant’s reliance on Evans is misplaced. As a preliminary matter, we note
Daubert, supra, 509 U.S. 579 does not apply to the admission of evidence of new
scientific methodologies in California state courts. Kelly does. (Kelly, supra, 17 Cal. 3d
24.) Daubert governs the admission of such evidence in the federal courts. Under
Daubert, general acceptance in the relevant scientific community is a factor to be
considered, along with others, in determining whether or not expert testimony regarding a
new scientific methodology is sufficiently reliable to be admitted into evidence (Daubert,
supra, 509 U.S. at pp. 592-595), whereas, in California, general acceptance in the
relevant scientific community is a prerequisite to the admission of such testimony.
(People v. Leahy, supra, 8 Cal.4th at pp. 593-595, 598-604.) However, in Evans, supra,
892 F. Supp. 949, the federal district court found granulization theory had not gained such
16
general acceptance, which determination would, by itself, render expert testimony
concerning the theory inadmissible under Kelly. We need not determine whether the
district court in Evans got this right because our case does not involve granulization
theory. Unlike Special Agent Raschke, Detective Bearor did not purport to have
estimated the coverage area of specific cell towers based on their proximity to other
towers. Nor did he claim to have determined the location of defendant’s cell phone based
on his ability to predict overlapping coverage areas. Those were the salient aspects of
granulization theory found to be lacking in reliability. While Detective Bearor did
perform the initial steps taken by the expert in Evans, i.e., he identified the locations of
the cell sites used by defendant’s phone before and after the robbery, the specific sector
of those towers receiving the signal from defendant’s phone, and the direction of that
sector’s coverage, nothing in the Evans decision casts doubt on the ability of an expert to
testify to these matters or to the relatively common sense deduction that the phone must
have been in the general area of the cell tower and in the general direction of coverage.
Indeed, other federal district court decisions, involving expert testimony far more
analogous to that given by the detective in this case, have found such testimony to be
reliable under Daubert, supra, 509 U.S. 579. (See, e.g., United States v. Machado-Erazo
(D.D.C. 2013) 950 F. Supp. 2d 49, 57-58; United States v. Jones (D.D.C. 2013) 918
F. Supp. 2d 1, 4-6.) As we have already explained, we conclude such testimony does not
describe a “new scientific methodology” at all, and therefore, Kelly does not apply.
(People v. Leahy, supra, 8 Cal.4th at p. 591.)
Finally, we also reject defendant’s assertion sections 801 and 802 barred Detective
Bearor’s testimony. Section 801 provides expert opinion testimony must be “[r]elated to
a subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact,” and “[b]ased on matter (including his [or her] special
knowledge, skill, experience, training, and education) perceived by or personally known
to the witness or made known to him [or her] at or before the hearing, whether or not
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admissible, that is of a type that reasonably may be relied upon by an expert in forming
an opinion upon the subject to which his [or her] testimony relates, unless an expert is
precluded by law from using such matter as a basis for his [or her] opinion.” Section 802
provides: “A witness testifying in the form of an opinion may state on direct examination
the reasons for his [or her] opinion and the matter (including, in the case of an expert, his
[or her] special knowledge, skill, experience, training, and education) upon which it is
based, unless he [or she] is precluded by law from using such reasons or matter as a basis
for his [or her] opinion. The court in its discretion may require that a witness before
testifying in the form of an opinion be first examined concerning the matter upon which
his [or her] opinion is based.”
Defendant does not dispute the operation of cell phone systems and analysis of
call detail records is sufficiently beyond common experience that expert testimony on the
subject would assist the jury. Instead, he complains such records, “standing alone, were
not the type of matter upon which an expert could reasonably rely in formulating an
opinion about the location of a particular cell phone” with any degree of precision. But,
as we have explained, Detective Bearor did not purport to know the location of
defendant’s cell phone with any degree of precision. He simply identified the phone’s
location as being in the general area of a particular cell tower and on a particular side of
that tower. For reasons already expressed, call detail records may be reasonably relied
upon to express such a limited opinion. Defendant then reiterates his argument that
“granulization theory” is not reliable. But, as we have also explained, Detective Bearor
did not testify to using such a theory in determining, very generally, where defendant’s
cell phone was located the night of the robbery. Thus, defendant’s arguments under
sections 801 and 802 also fail.
Because Detective Bearor’s expert testimony regarding his analysis of the call
detail records for defendant’s cell phone the night of the robbery was not inadmissible
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under the Kelly test or sections 801 and 802, defendant’s trial counsel was not ineffective
for failing to make a futile objection to the evidence on these grounds.
II
Pitchess Motion
Defendant requests that we review the trial court’s determination, after conducting
an in camera review of Detective Bearor’s personnel files under Pitchess, that such files
contained no discoverable material. We have done so and conclude there was no abuse
of discretion.
A criminal defendant has the right to “compel discovery” of certain information in
police officer personnel files by demonstrating good cause. (Pitchess, supra, 11 Cal.3d at
pp. 536-538.) That right is codified in sections 1043 through 1045 and Penal Code
sections 832.7 and 832.8. (City of Santa Cruz v. Municipal Court (1989) 49 Cal. 3d 74,
81 (City of Santa Cruz).)
A request for discovery of such records must be made by a written noticed motion
(§ 1043, subd. (a)) supported by affidavits showing “good cause” for the discovery or
disclosure of the documents sought. Good cause is shown by setting forth the
“materiality” of the information sought to the subject matter of the pending litigation and
stating “upon reasonable belief” the identified governmental agency has the records or
information sought. (§ 1043, subd. (b)(3); City of Santa Cruz, supra, 49 Cal.3d at p. 82.)
This two-part showing is a “relatively low threshold for discovery.” (City of Santa Cruz,
supra, at p. 83.)
Once the trial court finds good cause has been shown, it must conduct an in
camera review of the records and disclose only those records and information that are
relevant and not subject to exclusion from disclosure. (§ 1045, subds. (a) & (b).) To
facilitate meaningful appellate review, the trial court must make a record of the
documents it considered before ruling on the motion. (People v. Mooc, supra, 26 Cal. 4th
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at pp. 1228-1230 [“the court can prepare a list of the documents it considered, or simply
state for the record what documents it examined”].)
Here, defendant filed a Pitchess motion seeking discovery of personnel files
pertaining to two detectives, Bearor and Matt Sanchez. In support of the motion,
defendant’s trial counsel submitted a declaration stating the defense contended Detective
Bearor “obtained a confession through unlawful means,” and both detectives
“intentionally misrepresented and falsified documents” and carried out “an improper
search and seizure.” The declaration further stated defense counsel believed the Elk
Grove Police Department possessed complaints filed against each detective, alleging they
“committed acts of dishonesty and/or providing false information or testifying falsely,”
and other files generated during the investigation of such complaints. The City opposed
the motion, arguing defendant failed to show good cause because defense counsel’s
declaration offered no facts supporting the foregoing assertions of unlawful, untruthful,
and improper conduct on the part of either detective.
At the hearing on the motion, defense counsel withdrew as a basis for the motion
the assertion Detective Bearor unlawfully obtained a confession from defendant. Indeed,
as the City pointed out in opposition, no confession was obtained from defendant. With
respect to the other two bases for the motion, defense counsel argued (1) Detective
Bearor submitted a warrant return to the magistrate who issued a particular search
warrant misrepresenting what was seized during that search, and (2) both detectives
committed misconduct in conducting a separate search that was ultimately found by the
trial court to be unlawful. The trial court found good cause to conduct an in camera
review of documents in Detective Bearor’s personnel file based on the misrepresentation
in the warrant return. After conducting an in camera hearing on whether there are any
complaints or investigations of Detective Bearor falsifying documents, engaging in
untruthful acts, or falsely reporting any investigation he had done for the Elk Grove
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Police Department, the trial court determined “that there are no such complaints of
untruthfulness or veracity or anything of that nature.”
A trial court’s ruling on the discoverability of material in police personnel files
pursuant to Pitchess, supra, 11 Cal. 3d 531 is reviewed for an abuse of discretion.
(People v. Hughes (2002) 27 Cal. 4th 287, 330.) We have reviewed the sealed transcript
of the hearing held in camera and conclude the trial court did not abuse its discretion in
determining the records contained no discoverable material.
DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
BUTZ, J.
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